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What is a common law marriage?

On Behalf of | Mar 19, 2018 | Same-Sex Couples & Divorce |

Most married Texas couples were married in a wedding ceremony and have a marriage license. Other Texas couples, however, had no wedding, have no marriage license, but still are legally married. These couples are in what is known as a common law marriage. Texas calls these marriages a “marriage without formalities” or an “informal marriage.”

If you want to establish a legal common law marriage in Texas, you must do the following three things:

  1. You must agree to be married to your spouse.
  2. You and your spouse must live in Texas as husband and wife.
  3. You and your spouse must represent to others that you are married.

These three requirements are the only way to establish a legal common law marriage in Texas. Without all three of these elements being present, you and your spouse are not legally married, no matter how long you have lived together or continue to do so. Once you establish a legal common law marriage in Texas, however, you can move out of state and still be legally married, even if the state to which you move does not recognize common law marriages. This is because all states must recognize legal marriages that took place in all other states.

Declaring your common law marriage

Since common law spouses have no marriage license, the easiest and best way to prove the legality of your marriage is to sign a Declaration of Informal Marriage. Section 2.402 of the Texas Family Code explains how you can do this. The County Clerk of the county in which you live can provide you with the official Declaration form. It contains, among other things, the following items:

  • Spaces where you and your spouse fill in your full names, address, dates and places of your respective births, and Social Security Numbers
  • Spaces where you both fill in what type of documentation you are providing that proves you are at least 18 years of age
  • A printed declaration and oath, which the County Clerk will administer to you verbally, swearing or affirming how and when you established your common law marriage and performed the three requirements listed above
  • Spaces immediately below the declaration and oath where you and your spouse sign the document

The County Clerk will then sign the certificate at the bottom of the Declaration of Informal Marriage, record it, and give you the original. He or she also may give you a Certificate of Informal Marriage, but is not required to do so. A copy of the Declaration will be sent to the Bureau of Vital Statistics. This information is provided for educational purposes and should not be interpreted as legal advice.